1.Before Court is the Appellant/Applicant’s Motion dated April 11, 2023, brought pursuant to Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Article 159(2((a), (b) and (c) of the Constitution. The Applicant seeks orders THAT: -i.Spent.ii.Spent.iii.The Honourable Court be pleased to grant an order of stay of execution of the Judgment of Hon Robert Mobisa Oanda delivered on March 16, 2023, at Winam Law Courts, Employment and Labour Relations Court Case No E010/2022 and/or any consequential orders thereto upon terms as may be just and reasonable and facilitate this appeal.iv.The Costs of this application be provided for.
2.The application is supported by grounds on the face of the motion and the affidavit of Roy Kiprotich, sworn on April 12, 2023. The Applicant/Appellant argues that it is aggrieved by the decision rendered by the Magistrates Court on March 16, 2023, and for which it has preferred an appeal before this court.
3.The Appellant further avers that the appeal has high chances of success and that it is likely to suffer substantial and irreparable loss, unless the Respondent is restrained in the meantime from executing the judgment/decree in the matter.
4.It is the Applicant’s aversion that its appeal will be rendered nugatory if the orders sought are not granted.
5.The Respondent opposed the motion vide a replying affidavit sworn on April 17, 2023. The Respondent avers that the application is an afterthought and is only tailored to frustrate him and abuse the process of the Court.
6.The Respondent further avers that granting of the orders sought will deny him the fruits of his judgment, and that the Applicant has not proved that his appeal will be rendered nugatory as by law required and should be dismissed.
7.The Respondent avers that the Applicant has not proved the nature and extent of the substantial loss it would suffer if the orders are not granted.
8.Parties canvassed the application through written submissions, and which have been duly considered.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 27TH DAY OF JULY, 2023.C. N. BAARIJUDGEAppearance:N/A for the Applicant/AppellantN/A for the RespondentChristine Omolo – C/A
9.Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, provides for stay of execution in the following words:
10.The general rule in an application for stay is that if there is no overwhelming hindrance, a stay of execution ought to be granted so that an appeal, if successful, may not be rendered nugatory.
11.Cotton L J in Wilson v Church (No 2) 12 Ch D (1879) 454 held:
12.In exercise of its discretion in an application for stay orders, the Court is guided by the grounds set out in the case of Stephen Wanjohi v Central Glass Industries Ltd Nbi HCCC No 6726 of 1991 where the Court emphasized that:
13.The Appellant/Applicant’s case is that it stands to suffer substantial and irreparable loss if the orders sought are not granted. The award made by the Trial Court in favour of the Respondent is about Kshs 400,000. The issue is whether this figure is substantial as to occasion the Appellant/Applicant loss if its appeal succeeds.
14.In my view, a figure of Kshs 400,000 is not loose cash and especially when the Respondent has not demonstrated his ability to refund the decretal sum should the Appellant’s appeal succeed.
16.The appellant/Applicant’s motion was filed on April 13, 2023, while the judgment subject thereof, was rendered on March 16, 2023, just about a month thereafter. One month in my view is not inordinate delay.
17.It is also not disputed that the Applicant adhered to the orders of the Court granted earlier in respect of security, having deposited the security as directed.
18.I find the application merited and is hereby allowed.
19.Consequently, an order for stay of execution of the judgment delivered on March 16, 2023, in this matter is hereby granted pending hearing and determination of the appeal.
20.The costs of this application shall abide the appeal.